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Ethics Commission Lauderdale

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BEFORE THE MISSISSIPPI ETHICS COMMISSION
THOMAS E. WILLIAMS

COMPLAINANT

VS.

NO. M-14-001

LAUDERDALE COUNTY BOARD OF SUPERVISORS

RESPONDENT

FINAL ORDER
This matter came before the Mississippi Ethics Commission through an Open Meetings
Complaint filed on January 13, 2014, by Mr. Thomas E. Williams against the Lauderdale County
Board of Supervisors, hereinafter referred to as “the Board.” On March 27, 2014, the Board filed
a response to the complaint by and through one of its attorneys.
The Ethics Commission has jurisdiction over this matter pursuant to Section 25-41-15,
Miss. Code of 1972. A Preliminary Report and Recommendation of the hearing officer was
prepared in accordance with Rule 4.6, Rules of the Mississippi Ethics Commission, and filed on
August 8, 2014. The respondent then filed a Request for Reconsideration, and the hearing officer
set the case for hearing on November 4, 2014. Due to the excused absence of one of the
witnesses, the hearing was continued until November 25, 2014, and concluded on that date.
In accordance with Rule 4.6, the Final Report and Recommendation was submitted on
December 31, 2014, for consideration by the Commission at its regularly scheduled meeting on
January 9, 2015. The respondent submitted a brief in opposition to the Final Report and
Recommendation on January 8, 2015. The Commission considered this matter and heard oral
arguments from the complainant and respondent on January 9, 2015.
PROCEDURAL HISTORY AND FINDINGS OF FACT
Both the complaint and response provide numerous facts, many of which, while helpful
to understanding the background from which this dispute arises, are not directly relevant. The
response in particular provides a relatively detailed chronology, which was considered in the
light most favorable to the respondent. Numerous exhibits were also provided. The following
facts were recited in the Preliminary Report and Recommendation, which relied almost entirely
upon the response.
A.

Response

The Board had for some time prior to March of 2013 considered issuing bonds to pay for
a range of improvements to county owned property, including proposed recreational facilities to
be constructed in Supervisor Districts 3 and 4. [Response, pp. 2-5.] In connection with the
possible bond issue, the county administrator, Mr. McCraney, had contacted a public finance
consultant, Mr. Grubbs. [Id.] The consultant was asked to provide an estimate of how much
money the Board could borrow through a bond issue without raising ad valorem taxes and
without precluding another bond issue at the beginning of the next term of office. [Response, p.

M-14-001

Final Order

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5] The county administrator received written estimates and other information from the consultant
and shared the information with each supervisor separately and individually. [Response, p. 6]
Subsequently, on March 22, 2013, District 2 Supervisor, Mr. Newell, and District 4 Supervisor,
Mr. Norwood, encountered each other by chance in the area of the supervisors’ offices and
briefly discussed one of the proposed projects. [Id.]
On March 26, 2013, a meeting was held at the law office of the board attorneys. In
attendance were the consultant, the county administrator, one of the board attorneys, District 2
Supervisor, Mr. Newell, and District 1 Supervisor and Board President, Mr. Florey. [Response,
p. 7] The purpose of the meeting was to consider information presented by the consultant
regarding the amount of money the Board could borrow through a bond issue without raising
taxes and without precluding another bond issue at the beginning of the next term of office. [Id.]
Later that same day a separate meeting was held for the same purpose in the Supervisors’
Conference Room in the courthouse. Attending were the consultant, District 3 Supervisor, Mr.
Todd, and District 5 Supervisor, Mr. Rutledge.1 [Response, p. 8] In both meetings, the discussion
focused on whether the Board could issue bonds totaling $10-18 million without raising taxes
and without precluding another bond issue at the beginning of the next term of office. [Response,
pp. 7-8]
On March 28, 2013, a Board meeting, characterized in the response as a “work session,”2
was held in preparation for a regular meeting of the Board scheduled for April 1st. [Response, pp.
8-9] The proposed bond issue was not discussed at the work session. [Id.] Following the work
session the board president and the county administrator met to finalize the agenda for the
upcoming regular board meeting, and, according to the initial response, the board president asked
the county administrator to “poll” two of the board members, Mr. Todd of Dist. 3 and Mr.
Norwood of Dist. 4, and specifically ask whether they would support a letter of intent to issue
bonds in the amount of $14 million. [Response, p. 10] Again according to the initial response,
both members confirmed their support; the matter was placed on the agenda, and the county
administrator asked the board attorney to have the Board’s bond counsel prepare a Resolution of
Intent. [Id.] Thereafter, the county administrator sent a text message to Dist. 5 Supervisor
Rutledge and Dist. 2 Supervisor Newell informing them the $14 million bond issue had been
placed on the agenda for the next meeting. [Id.] The initial response also stated that both
supervisors responded to the text message by calling the county administrator and were both told
that Supervisors Florey, Todd and Norwood had “‘decided’ that the amount was $14 million.”
[Id.]
At the regular board meeting on April 1, 2013, the Board voted 3 to 2 to adopt a
Resolution of Intent to issue $14 million in bonds for the recreational projects and courthouse
repairs. [Response, p. 11] Supervisors Florey, Todd and Norwood voted in favor of the
resolution; Supervisors Newell and Rutledge opposed. [Id.]
1

Todd recalls that Norwood entered the room momentarily to greet the consultant. If that recollection is true, then a
quorum of the Board (three members) was briefly gathered.
2
A “work session” is understood to be a meeting of a public body at which the members of the public body have
agreed to take no official action. A “work session” is, therefore, a “meeting” as defined in Section 25-41-3(b), Miss.
Code of 1972. Consequently, public notice must be provided, and minutes must be kept. There is no allegation that
the “work session” noted herein was held in violation of the Open Meetings Act. This notation is made solely for
clarity of the record.

M-14-001

B.

Final Order

Page 3 of 6

Pre-Hearing Phase

Following the issuance of the Preliminary Report and Recommendation, the board
associated the law firm of Butler Snow, LLP, and was given additional time in which to file a
Request for Reconsideration of the Preliminary Report and Recommendation. In the Request for
Reconsideration, the respondent made numerous legal arguments regarding both of the primary
issues addressed in the Preliminary Report – (1) the meetings involving a bond consultant and
board members and (2) communications between the county administrator and members of the
board. Additionally, the Request for Reconsideration asserts that certain facts contained in the
response which relate to communications between the county administrator and board members
were inaccurate.
Because the facts relied upon in the Preliminary Report were called into question, the
hearing officer set the case for hearing on November 4, 2014. Due to the excused absence of one
of the witnesses, the hearing was continued until November 25, 2014, and concluded on that
date. Because the facts contained in the Preliminary Report related to the meetings between the
bond consultant and board members were not disputed, the hearing was limited to facts involving
communications between the county administrator and members of the board of supervisors
which occurred on or about March 28, 2013.
C.

Hearing

The first witness called at the hearing was Mr. McCraney, the former county
administrator. He testified that after the work session on March 28th, he met with Mr. Florey, the
former board president, to finalize the agenda for the upcoming board meeting, and Mr. Florey
decided to place the bond issue on the agenda. Mr. McCraney also testified that Mr. Florey did
not ask him to contact the other supervisors regarding the bond issue being placed on the agenda.
Rather, Mr. McCraney decided he should notify the other board members that the matter would
be on the agenda. Mr. McCraney further testified that he chose to set the amount of the proposed
bond issue at $14 million based upon the information presented by the bond consultant.
Mr. McCraney said he sent a text message to Mr. Newell and Mr. Rutledge and called
Mr. Todd and Mr. Norwood, telling all of them that Mr. Florey had placed a $14 million bond
issue on the agenda. Mr. McCraney also stated that Mr. Florey never asked him for any feedback
from the other board members and that none of the other supervisors asked him to convey any
information to Mr. Florey. Each of the supervisors was also called to testify. Their testimony
gave no indication that any of them shared information with Mr. Florey through their
communications with Mr. McCraney. While Mr. Newell and Mr. Rutledge acknowledged
speaking to each other about the agenda item, there was no indication that three or more
supervisors communicated with each other about the bond issue being placed on the agenda.
CONCLUSIONS OF LAW
At the outset, it is important to note that this matter involves pre-arranged meetings
between a consultant and members of the board of supervisors whereby a quorum of the board
(albeit in separate meetings of less than a quorum) intended to discuss and determine matters
squarely within the control and jurisdiction of the board. The central facts of this case are that the

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Final Order

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board members divided into two separate groups of less than a quorum of the board and
conducted separate meetings about the same subject, with the same consultant, on the same day.
Numerous questions may be raised by this case involving scenarios which are similar to but
factually distinguishable from the facts herein. However, the Ethics Commission has no advisory
authority under the Open Meetings Act, and this decision is limited only to the specific facts of
this case.
“The Open Meetings Act was enacted for the benefit of the public and is to be construed
liberally in favor of the public.” Board of Trustees of State Insts. of Higher Learning v. Miss.
Publishers Corp., 478 So.2d 269, 276 (Miss. 1985). In Hinds County Board of Supervisors v.
Common Cause of Mississippi, 551 So.2d 107 (Miss.1989), the Supreme Court summarized the
Legislative intent of the Open Meetings Act as follows:
Every member of every public board and commission in this state should always
bear in mind that the spirit of the Act is that a citizen spectator, including any
representative of the press, has just as much right to attend the meeting and see
and hear everything that is going on as has any member of the board or
commission.
Id. at 110. “However inconvenient openness may be to some, it is the legislatively decreed public
policy of this state.” Mayor & Aldermen of Vicksburg v. Vicksburg Printing & Pub., 434 So.2d
1333, 1336 (Miss.1983).
A.

Piecemeal Quorum

Section 25-41-3, Miss. Code of 1972, defines a “meeting” as “an assemblage of members
of a public body at which official acts may be taken upon a matter over which the public body
has supervision, control, jurisdiction or advisory power.” “‘[O]fficial acts’ includes action
relating to formation and determination of public policy....” Gannett River States Pub. Corp., Inc.
v. City of Jackson, 866 So.2d 462, 466, ¶ 16 (Miss. 2004), quoting Bd. of Trustees at 278.
Official acts may be taken when a quorum of the public body assembles. Gannett at 466, ¶ 15.
“The Legislature does not indicate that official acts must be taken in order for the gathering to be
considered a meeting.” Gannett at 466, ¶ 15.
The Open Meetings Act does “not apply to chance meetings or social gatherings of
members of a public body.” Section 25-41-17. Moreover, not every “informal or impromptu
meeting” is subject to the Open Meetings Act. Hinds County at 122.
A public board should be available for social functions with charities, industries
and businesses, at which no action is taken and their only function is to listen,
without being subjected to the Act. Therefore, a function attended by a public
board, whether informal or impromptu, is a meeting with the meaning of the Act
only when there is to occur “deliberative stages of the decision-making process
that lead to formation and determination of public policy.”
Id. at 123, quoting Bd. of Trustees at 278. (emphasis added)

M-14-001

Final Order

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On March 26, 2013, the bond consultant met with four supervisors, a quorum of the
board. The consultant first met with two supervisors and then separately met with another two
supervisors but discussed the same topic with all four supervisors. Although the board intended
to comply with the law, these two separate meetings circumvented the Open Meetings Act by
avoiding a physical gathering of a quorum at the same place at the same time. However, the
consultant met with all four supervisors about the same matter, a matter under the authority of
the Board. Those gatherings involved the “deliberative stages of the decision-making process
that lead to formation and determination of public policy” regarding the subsequent bond issue.
Those gatherings collectively constitute a “meeting” of the Board within the meaning of the Act.
These private gatherings were clearly intended to exclude the public from the deliberations by
the board members about a matter of public concern. Those deliberations should have only
occurred at a properly noticed public meeting of the Board.
B.

Polling Board Members

The Supreme Court has condemned the practice of polling board members outside of a
properly noticed public meeting “insofar as such telephone polls in fact circumvent the act by
preventing public disclosure of deliberation and conduct of business.” Bd. of Trustees at 278.
Moreover, due to statutory amendments subsequent to the Bd. of Trustees case, voting by
telephone must now take place only during a properly noticed telephonic meeting, pursuant to
Section 25-41-5, rendering all such “telephone polling” entirely illegal. See Section 25-41-5(2);
House Bill 583, 2003 Regular Session.
However, no violation occurs when a board member or board employee merely conveys
information to members of the board, even a quorum. The county administrator and other
employees of the board are free to communicate with board members on matters of county
business. Such communication is essential to the proper administration of governmental
functions. Likewise, individual board members are free to communicate with other individual
board members, so long as these communications do not involve a quorum of the members.
Yet a violation occurs when a quorum of the board begins to share with one another
information or opinions about a matter under their authority. The exchange of communications
between or among board members is a “deliberation,” whether by telephone, text message, email
or any other means of telecommunication. Deliberations are “official acts,” within the meaning
of the Open Meetings Act. Gannett at 466, ¶ 15-16. Therefore, an exchange of communications
among a quorum of a board regarding a matter under the authority of the board is a “meeting.”
The facts gathered from sworn testimony at the hearing in this case consistently indicate
no illegal telephone polling occurred on March 28, 2013, despite the facts initially provided in
the response. Mr. McCraney stated under oath that Mr. Florey did not ask him to poll the board
members but that Mr. McCraney took it upon himself to inform the board members that Mr.
Florey had placed the bond issue on the agenda for the upcoming meeting. Mr. Florey’s
testimony was consistent with that of Mr. McCraney. The testimony of the other supervisors
provided no evidence that a quorum had communicated with each other regarding the agenda
item, either directly or indirectly through Mr. McCraney. Mr. Florey and Mr. McCraney further
testified that, as board president, Mr. Florey alone decided the bond issue would be on the
agenda and that Mr. McCraney merely informed the other supervisors of that decision.

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Final Order

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Consequently, the findings and recommendations in the preliminary report which relate to the
issue of telephonic polling are hereby withdrawn.
C.

Validity of Board Action

Finally, actions taken by a public body are not invalidated simply because those actions
violate the Open Meetings Act. Shipman v. North Panola Consolidated Sch. Dist., 641 So.2d
1106, 1117 (Miss. 1994). Consequently, the action taken by the Board on April 1, 2013, to adopt
a Resolution of Intent to issue $14 million in bonds for recreational projects and courthouse
repairs is not invalidated by the violations of the Open Meetings Act found herein. Moreover, the
Ethics Commission has no authority to invalidate any bonds issued by the Board.
IT IS HEREBY ORDERED as follows:
1.
The Mississippi Ethics Commission hereby finds Board members Newell, Florey,
Todd and Rutledge violated Sections 25-41-5, 25-41-11 and 25-41-13, of the Open Meetings Act
when, on March 26, 2013, they established a quorum of the Lauderdale County Board of
Supervisors by holding two separate gatherings with the same consultant and discussing a matter
over which the Board has authority without providing public access, providing notice, or
recording minutes.
2.
The commission hereby orders the board to refrain from further violations and
comply strictly with Sections 25-41-5, 25-41-11 and 25-41-13.
SO ORDERED this the 9th day of January 2015.
MISSISSIPPI ETHICS COMMISSION

BY: __________________________________
TOM HOOD, Executive Director

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